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Court Lands Punch in Face Of NLRB Order on ‘Prisoner’ Shirts

Does the right to wear union apparel at work mean that
employees facing the public can sport shirts printed with words like “Prisoner”
and “Inmate” to nudge an employer in contract talks? The NLRB found that
publicly visible technicians of AT&T Connecticut had such a right, but the
D.C. Circuit disagreed.

Much like politicians, unions often use publicity stunts to
draw attention to their goals, and it’s a longstanding principle of federal
labor law that employees have a right to wear union apparel. This recent
decision shows how the D.C. Circuit understands an employer’s reasonable
reputational concerns to limit that right. S.
New England Tel. Co. v. NLRB, 203
LRRM 3457, 2015 BL 220995 (D.C. Cir. 2015).

Union Weighs In

The dispute arose during a campaign by the Communication
Workers of America to pressure AT&T during negotiations for a new labor
contract.

The union distributed white shirts with black lettering that
read “Inmate #” on the front, with a black box below the text. The back of the
shirts read “Prisoner of AT$T,” with several vertical stripes above and below
the text. The shirts didn’t make any direct references to the union or its
ongoing dispute with AT&T.

Match Finds Referee

On two specific days, hundreds of members wore the shirts to
work at the union’s suggestion, but supervisors instructed all employees who
interacted with customers or worked in public to take them off. These employees
included both technicians who install and repair lines at homes and businesses
and technicians who work on construction projects.

In all, 183 employees who didn’t take off their shirts got
one-day suspensions.

The union filed an unfair-labor-practice charge with the
NLRB, arguing that the suspensions unlawfully interfered with employees’ rights
to engage in concerted activity.

Employer Comes Out
Swinging

In response, the employer invoked the “special
circumstances” doctrine from the U.S. Supreme Court’s 1945 decision in Republic
Aviation v. NLRB. Under that doctrine, a company may lawfully ban union
messages on publicly visible apparel at work when it reasonably believes that
the messages may harm its relationship with customers or its public image.

In support of AT&T’s argument, the company’s officers
testified that the shirts could harm AT&T’s public image generally, alarm
or confuse customers or cause customers to believe that its employees actually were
convicts.

The NLRB found that the company’s ban on the shirts was
unlawful anyway. The Board reasoned that the shirts “would not have been
reasonably mistaken for prison garb” and that “the totality of the
circumstances would make it clear” that a technician wearing the shirt was an
AT&T employee.

But was that enough?

Court Takes Off the
Gloves

The employer petitioned for review of the Board’s order, and
the D.C. Circuit vacated it.

Quoting circuit precedent, the court said the Board’s
“expertise is surely not at its peak in the realm of employer-customer relations.”

The court found that the Board applied the “special
circumstances” test unreasonably because it didn’t ask the right question.

The court said the right question was not whether AT&T’s
customers would confuse the shirt with real prison garb. That was only part of
the picture. Instead, the Board should have asked whether AT&T could
reasonably believe that the shirts’ message may harm its relationship with
customers or its public image.

To settle that issue, it was enough for the court to ask
rhetorically what Member Hayes before it said in his dissent to the Board’s
order: “What would you think about a company that permitted its technicians to
wear such shirts when making home service calls?”

“Common sense,” as the court put it, “sometimes matters in
resolving legal disputes.” Time will tell if the same is true of elections.

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